Last stop for democracy: on tour with Poland's rebel judges – The Guardian
Vilified as enemies of the people, judges have cast off their robes, hired a minibus and gone on a nation-wide road trip to explain why they’re defending the rule of law
Last modified on Mon 20 Sep 2021 12.01 BST
It could be a village festival at the end of summer. Pop music blares from loudspeakers competing with the screams of children playing. Only a few dozen local people have turned out but they listen with interest, arms folded, on the wide expanse of green.
This is Biłgoraj, a small town in south-eastern Poland not far from the Ukrainian border. The event is no festival, however. It is, its organisers claim, part of the last battle to save Polish democracy.
In a T-shirt, washed-out jeans and Chucks, Igor Tuleya moves through the crowd. Again and again, he stops and hands someone a booklet from a bundle under his arm: the slim document with a crowned eagle on the red and white cover, is Poland’s constitution.
Tuleya is a judge in the district of Warsaw; the constitution the foundation of his work. For now. As the governing Law and Justice party (PiS) steps up its six-year campaign to “reform” Poland’s courts, the constitution is at the centre of a deepening crisis within Poland’s borders and between Poland and Europe.
The EU says the restructuring undermines the judiciary’s independence and the rule of law, cornerstones of democracy and of EU membership. The nationalist government waves the Polish constitution at Brussels to ward off EU “legal aggression”.
But at home, democracy campaigners say the document is being hollowed out, its checks and balances overridden, while the credibility of judges like Tuleya, routinely characterised as corrupt and unpatriotic, is systematically being eroded.
Not only has the government appointed PiS loyalists to the constitutional court, it has created a supreme court “disciplinary chamber” with the power to lift judges’ immunity from prosecution.
As a result, judges find themselves at risk of “disciplinary offences” for rulings the government finds unhelpful including referring cases to the EU court.
In July, the European court of justice ruled that the disciplinary chamber was vulnerable to political interference and incompatible with EU law. Poland was given an ultimatum: scrap it or face sanctions.
Legal ping pong ensued, with Warsaw eventually indicating that it would comply – only to backtrack. In the latest salvo, the European Commission applied to the European court of justice to impose daily fines for as long as the government was in breach of its obligations.
The crisis moves into an altogether higher gear this week. This week, the constitutional court is scheduled to rule on a question most people thought had been resolved when Poland joined the EU in 2004: does EU law have primacy over domestic law?
If the answer they give is “no”, experts believe it would be a tipping point, a first step even to Poland quitting the union. No wonder the verdict has been postponed four times already.
With Poland’s slide to authoritarianism and a legal “Polexit” at stake, demonised judges are not lying down: they are taking the constitution on tour. In a rented VW minibus, they have been crisscrossing the country.
The “Tour de Konstytucja”, an unlikely roadshow, has already been to more than 80 Polish towns to explain to citizens why they should care about what, to many, is a remote and meaningless concept: the rule of law.
On an open-air stage in Biłgoraj, a volunteer from the audience is invited to slip on a long black judge’s robe under which her white sneakers peek out. Then a heavy judge’s chain with a silver eagle pendant is placed around her neck.
“I open the case …” she says, speaking into the microphone in a serious-sounding voice. It’s a role-play designed to educate people about how the justice system works for them. Opposite her, in the witness box, playing the role of a police officer, sits Judge Tuleya.
At 51, Tuleya is an unlikely rebel: he served the Polish state quietly for 25 years. But from 2017 he became a PiS hate figure, after ruling that PiS MPs had effectively rigged a key parliamentary vote in December 2016 and then covered it up.
Last autumn his judicial immunity was lifted by the disputed disciplinary chamber and he was tried for misconduct and exceeding his powers .
Tuleya’s defiance on judicial independence has made him an icon of resistance to the PiS. His face appears, Che Guevara-like, from supporters’ lapels and bumper stickers.
For Tuleya, this is the darkest hour for the rule of law in Poland, but it is also a personal ordeal.
“When my immunity was lifted, my world fell apart. That’s when it became apparent that my whole life had revolved around the court,” he says.
Back in April, after failing to comply with a summons issued by a court whose authority he refused to recognise, he lay awake night after night, afraid that the police would storm his flat in the early hours of the morning to pick him up.
Government prosecutors are still seeking “disciplinary proceedings” against him on seven charges and if his judicial immunity is not restored, he could face a two-year prison sentence.
With his career as a judge on hold for now, he is increasingly to be found among those whose rights he had once sworn to defend.
“We want to make people interested in what is happening in Poland and interested in their own rights,” says Tuleya summing up the purpose of the tour. A few years ago, he says, not many Poles knew what the Polish constitutional court did, that there were European courts, or even that there was a constitution. Nor would judges have worried much about public trust.
This expedition isn’t all doom and gloom: out on the road there are constitutional quizzes, live panel debates and – most unlikely of all – songs about the constitution.
The preamble has boomed out of loudspeakers to kick off at least 80 events, which just as often ended with people clamouring around the judges to sign an unrolled scroll of the basic law.
“The judges are the last stop before the dictatorship. If they no longer exist, Poland [and] Europe face a dark future,” says Robert Hojda.
As well as driving the bus, Hojda is also the chair of the Congress of Civic Democratic Movements, a platform of pro-democracy organisations, and along with Adam Bodnar, Poland’s former civil rights ombudsman, he co-organised the tour.
“Politicians use the constitution for their own purposes,” Hojda said. “But it is our constitution. We have to fight for it together.”
Besides Tuleya, other prosecutors and lawyers are reaching out directly to the people, colliding with a hostile government and the state-backed media in the process.One of them is Monika Frąckowiak, who sits in Poznań district court in western Poland. Unlike Tuleya, she is still allowed to work. But that could change soon.
A total of five disciplinary investigations are now under way against her for, among other transgressions, calling the Polish constitutional court a “sham institution” and criticising the Minister of Justice in the European parliament.
Frąckowiak has been targeted by a smear campaign and has received death threats on Twitter. Her address and the names of her daughters were made public.
“The comments are full of hate, these people are ready for anything,” Frąckowiak said. The 47-year-old accuses the Polish Ministry of Justice of passing on sensitive information to Twitter accounts to intimidate judges.
It is out of the question for her, she says, to remain silent: “My parents were members of Solidarity. I want to prevent what they fought for in the 1980s from being in vain.”
But the campaign to characterise judges and lawyers as an elite and corrupt caste who make people’s lives harder has cut through with big sections of the Polish public.
A 2019 study showed that trust in the judiciary, far lower in Poland than in other EU member states, fell from 56% to 46% in the two years after the PiS came to power.
Frąckowiak says it is easy for a hostile government to play on people’s disgruntlement. This makes it all the more important for judges themselves to restore trust.
Chełm, the next stop on the judicial roadshow, is also in eastern Poland, near the border with Ukraine and a stronghold of the PiS. In the last parliamentary elections, 60% of people here voted for the ruling party.
Its promise to create jobs fell on fertile ground after the local shoe and cement factory closed. Such places are close to the judges’ hearts because state television is the main source of news and independent media have scant reach.
In the town square, it is pouring when the bus pulls in. No more than 20 people have come along. But umbrellas up, they crowd enthusiastically around Tuleya. One after another, people pull his wiry body towards them for selfies.
Some people ask him to sign their copy of the constitution. “I shook his hand and thanked him for what he is doing,” one man said. “Without courts and free media, there is no democracy.”
Tuleya admits later that even at such moments he feels despondent and isolated, a lone fighter. So why does he put himself through it? “If we don’t win back people’s trust now,” he says, “I don’t know what else can be done.”
For years, Tuleya has had to live with hate mail, death threats and verbal assaults on the streets of Warsaw. When he was still able to hear cases, envelopes containing white powder arrived and his court had to be evacuated.
Touring the country, there have been shouts of “liars, communists!” and some of the events were disrupted. Tuleya says he always tries to engage with genuine sceptics.
“I don’t know if we were able to convince them that the rule of law is an important thing,” he says, “but at least we managed to make them see in us people who also have their own convictions and who are worth talking to.”
Throughout, solidarity among the activist judges has kept him going. They came from all over Poland to support him when he went on trial in Warsaw. When his salary was cut and he worried he wouldn’t be able to pay his mortgage, they supported him with donations.
Nevertheless, Tuleya is exhausted and unconvinced that the EU will stand up to Poland. “If it is not do anything now, this could drag on for years.”
While the disputed disciplinary chamber is not accepting new cases, its past judgments will retain legal validity, the government has said. A Warsaw judge was suspended for applying EU law last week and new proceedings against other judges have been announced on the disciplinary chamber’s website.
The PiS, Tuleya fears, has no real intention of reversing its takeover of key parts of the judiciary. Any concessions to Brussels, he suspects, are about dodging EU fines and securing European Covid reconstruction funding.
Even if it abolishes the illegitimate chamber, it won’t give up the systemic undermining of the constitution and the rule of law.
Three days after the stop at Chełm, the tour bus is parked up in the shadow of Warsaw’s towering Stalin-era Palace of Culture. All the judges who have taken part over recent weeks reunite: the mood is good; embraces are warm.
The road trip will resume soon as enough money has been raised to buy a bus. More cities and towns will be added to the tour.
Frąckowiak says that for her, this week’s ruling is legally meaningless: “I don’t care what they deliver as I don’t recognise the constitutional court. From a legal point of view, the decision doesn’t matter, as this is not a real court.”
Is she worried that it could signal the start of Poland’s disengagement from the EU? “That is a process,” she says, “that has already begun.”
Reporting for this article was supported by a journalism bursary from the Foundation for German-Polish Cooperation.